Lesbians in India

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice. 17 February 2016

In general, where there is a risk of persecution or serious harm in a lesbian woman’s home area, for educated, and therefore middle class women, an internal relocation option is available. They are likely to be able to relocate to one of the major cities in India and are likely to be able to find employment and support themselves, albeit with difficulty, and to live together openly should they choose to do so. In general such relocation will not be unduly harsh. The source of these guidelines is in the case of AR and HN (Lesbian) CG [20016] UKUT66 February 2016.

The risk of persecution or serious harm is higher for uneducated lower class lesbian women in rural areas, who remain under the control of the family members and may not be permitted to leave the home to continue meeting their lesbian partners. Where family members are hostile to a lesbian woman’s sexuality they may reject her completely and sometimes formally renounce her as a member of their family. In such a case whether relocation to a city is unduly harsh would be a question of fact, depending on the ability of such a lesbian woman to survive economically away from her family and social networks. If a lesbian woman’s family wishes to pursue and harm her in the case of internal relocation, the ability to do so will depend on the reach of the family network, how persistent they are, and how influential. The evidence indicates that there is normally sufficient state protection for women whose families seek to harm them in their place of internal relocation.

We act on behalf of an Indian lesbian who came to the UK as a student in November 2010. Her student visa was extended until 14th February 2012. From 15th October 2012 she claimed asylum in the UK on the basis of her fear of returning to India because of her sexual orientation. The asylum claim was refused on 13th November 2012 but she was granted leave to remain in the UK under Article 8 ECHR on the basis of her family life with a Pakistani woman living in the UK with humanitarian protection. This leave was to expire on 14th May 2015.

Unfortunately the relationship with the Pakistani national broke down after the initial grant of leave and her previous representatives submitted an application for an extension of leave to remain on the basis of her private life. The representatives submitted that it would be in breach of her rights under Article 8 and Article 3 of the Human Rights Act to return her to India as an openly lesbian woman. She feared she would be killed, raped, arrested or prosecuted if returned to India because of her sexual orientation, bearing in mind that same sex activities are a criminal offence in India following the Indian Supreme Court ruling in December 2013. The Home Office country of origin information on India and homosexuality make it very clear that it is the Home Office view that though male same sex acts are criminalised in India in practice the authorities rarely prosecute cases. There are no laws relating to lesbian sexual activity.

We are now waiting for a date for an appeal.